é ee AY 
Libr ra ThYVE: SITY OF i ILLINOIS - 
URBANA 2 


meat 


IN THE ° 


SUPREME COURT OF OHIO 


December Term, ISG6S. | 


. THE STATE OF OHIO, ON THE RELATION OF THE 
ATTORNEY GENERAL, 


Us. 


THE CINCINNATI GAS LIGHT AND COKE COM- 
PANY. 


BRIEF FOR DEFENDANTS. 


B. A. FERGUSON, 
HOADLY, JACKSON & JOHNSON, 


See 


See i my Sess 
WRIGHTSON & CQ.. PRINTERS. 167 WALNUT ST,, © Nn. 


LIRARY 
UNIVEL/SITY OF ILEINGI3 
URBANA 


IN THE SUPREME COURT OF OHIO. 


DECEMBER TERM, 1868. 


THE STATE OF OHIO, ex rel. 
The ArrorNeY GENERAL 
Against Quo Warranto. 
THE CINCINNATI GAS LIGHT 
AND COKE COMPANY. 


STATEMENT OF PLEADINGS. 


The Information filed at the December Term, 1867, 
charges that the defendant, without any warrant, usurps 
the following franchises: 

1. That of being a body corporate. 
2. That of having and exercising an exclusive right 


1 ¢ to open and use the streets of the city of Cincinnati for 


- the introduction of pipes for conveying gas to the city and 
~ citizens thereof. 

oe PAbeThatior conveying gas through said pipes and 
_, supplying the same to the city and citizens, and charging 
~ therefor at the rate of $2.50 for each thousand cubic feet 

‘to each consumer of the same. | 

Four pleas were filed by the defendant at the same 
term. 

The jirst states the charter, passed April 3d, 1837, 


2 


by which certain persons therein named and their asso- 
ciates were thereby created a body corporate and politic, 
with perpetual succession, by the name and style of “The 
Cincinnati Gas Light and Coke Company,’ with full power 
and authority to manufacture and sell gas to be used 
for the purpose of lighting the city of Cincinnati, or the 
streets thereof, or the houses therein contained, to erect 
works and apparatus, and lay pipes for the purpose of 
conducting the gas in the streets of said city; but before 
digging up the said streets, the consent of the Council 
of said city, for that purpose, was to be obtained. 

That on the 16th of June, 1841, the said city made a 
contract with James F. Conover, granting to him, his 
associates, their heirs, assigns and successors, the ful/ and 
excluswe privilege of using the streets of the said city 
for the purpose of conveying gas to the city and citizens 
thereof, for the term of twenty-five years from the date 
of the contract, and thereafter until the same should be 
purchased by the city as therein provided, and also grant- 
ing the full and exclusive power and authority to open 
and use the said streets for the introduction of pipes for 
gas. That in consideration of the said privileges, said 
Conover, for himself, &c., agreed to furnish to the said 
city on the streets where pipes should be laid for sup- 
plying citizens with gas, such quantities of gas as 
might be required by the City Council for public lamps 
at two-thirds of the lowest average price at which gas 
should or might be furnished to private individuals in 
the cities of New Orleans, Baltimore, New York, Louis- 
ville, and Pittsburg, and for the like price to provide 
gas for lamps at the Engine Houses or other public. 


3 
buildings or bridges belonging to the city. That said 
Conover, &c., should have laid within two years six thou- 
sand feet of leading pipe for gas, and should annually lay 
four thousand feet more until the principal parts of the 
city should be furnished with pipes and that after the 
expiration of the said twenty-five years the said City 
Council should have the right and privilege of purchasing 
the works at a fair price and compensation, which should 


- be ascertained and determined by five disenterested 


persons, two to be selected by the City Council, two by 
Conover or his assigns, and the fifth by the four 
thus selected. That after making this contract, Conover 
associated with himself James UH. Caldwell, and assigned 
one-half of his rights and privileges to him. That after- 
wards, on the fifth day of September, 1842, Conover and 
Caldwell assigned the said contract and all the privi- 
leges of lighting said city and using the streets thereot 
for the purpose mentioned in the contract to the defend- 
ant so incorporated as aforesaid, which was consented 
to by the said City Council, on the 14th of September, 
1842, bya resolution passed for that purpose, subject 
however to the terms and conditions in the contract, 
specified, from which time the defendant had in all res- 
pects done and performed the things which were required 
to be done and performed under it by said Conover. And 
the plea concludes as follows : 

“ And the said Cincinnati Gas Light and Coke Company 
further say that by force of the said Act of the said 
General Assembly, and the provisions thereof, they still 
continue to be, and are, a body corporate and politic, in 
fact and in name, and are entitled to do all lawful acts, 


4. 


and to enjoy all the rights, privileges, franchises and im- 
munities allowed to them or conferred on them by said 
act, or said contract, or by the law of the land, by virtue 
whereof the said Cincinnati Gas Light and Coke Com- 
pany, for all the time in said information in that behalf 
mentioned, have used and exercised the liberties, privi- 
leges and franchises following, to wit: that of being a 
body corporate and politic, in law, fact and name, by the 
name of the Cincinnati Gas Light and Coke Company, 
and by the same name, to plead and be impleaded unto, 
unswer and be answered unto; and also, of having and 
exercising an exclusive right to open and use the streets, 
lanes, alleys and commons of the city of Cincinnati for 
the introduction of pipes and other apparatus for gas, for 
the purpose of conveying gas to thesaid city and citizens 
thereof; and also that of conveying gas through pipes 
and other apparatus laid in the streets, lanes, alleys and 
commons of the said city of Cincinnati, and supplying 
the same to the said city and the citizens, and charging 
as and for the price thereof, at the rate of two dollars 
and fifty cents for every thousand feet thereof, to each 
consumer of the same, other than the said city. And 
as to the residue of the liberties, privileges and fran- 
chises in the said information above specified, upon the 
said State of Ohio, supposed to be usurped by the said 
Cincinnati Gas Light and Coke Company, they say they 
never used, nor do they now use, the residue of the said 
liberties, privileges and franchises; without this, that 
the said Cincinnati Gas Light and Coke Company, the 
said liberties, privileges and franchises in said information 
above mentioned, or any of them, have usurped and did 


5 


usurp, upon the said State of Ohio, in manner and form 
as by the said information is above alleged against 
them; all of which the said defendants are ready to 
verify and prove as the Court shall award. 

“Wherefore they pray judgment, and that the said 
liberties, privileges and franchises may be allowed and 
adjudged to them.” 

The second plea is the same as the first, with the ad- 
ditional averment that, by virtue of the charter, the 
contract and the law of the land, the defendant, “for 
all the time in said information in that behalf men- 
tioned, and for twenty years continuously prior to 
the filing of the same, have used and exercised the lib- 
erties, privileges and franchises,” as stated in the first 
plea. 

The third and fourth pleas were held to be bad on 
demurrer at the last term, and need not be stated. 

At the December term, 1&68, the defendant filed a 
jifth plea. It contains all the allegations of the second 
plea, which aver the Company’s charter, the Conover 
contract and twenty years’ use, and in addition, it alleges 
that the City Council by ordinance passed August 31. 
1853, required it to furnish gas to citizens or private 
consumers at $2.25 per 1,000 cubic feet, that it refused 
and neglected for more than eleven months to comply 
with this requisition, that therefore on August 23, 1894, 
the City Council, by ordinance, re-enacted the Conover 
contract, specifying, however, that the privilege of pur- 
chase might be exercised at any time after 25 years from 
the date of the original ordinance, June 16, 1841, and 
the defendant accepted, and has kept and fully per- 
formed the same, and to the date of the information had 


6 


laid much more than four thousand feet of leading pipe 
for gas, annually, being in all more than ninety miles of 
such pipe, and had supplied the principal parts of the 
city therewith, had expended in money in the construc- 
tion of gas works and appurtenances necessary to the 
performance of said contract, more than $1,930,587, had 
entered into separate written contracts with more than 
10,568 private consumers, binding itself to supply them 
respectively with supplies of gas of the standard quality, 
and had furnished the public lamps of said city with gas 
at two-thirds the lowest average price at which, during 
said period, gas was supplied to private individuals of the 
cities of New Orleans, Baltimore, New York, Louisville 
and Pittsburg. It also alleges that by preamble and 
resolution of the City Council passed August 23, 1866, 
it was recited that by act of the General Assembly passed 
April 6, 1866, it was provided that no portion of said 
bonds thereby authorized, should be issued until after the 
question of the purchase of the gas works should have 
been submitted to vote of the qualified electors of said 
city, at an election to be specially held for that purpose, 
and a majority should decide in favor of said purchase, 
and it was further recited, that the City Council deemed 
it expedient and proper, that instead of entering into any 
further contract with the Cincinnati Gas Light and Coke 
Company, the question of purchase be referred to the 
decision of the people at a special election, as is provided 
by law, it was therefore resolved, that the Mayor issue 
his proclamation calling such special election, on Tuesday, 
October 9, 1866, for the purpose of voting for or against 
such purchase, and that the City Clerk, cause to be 
printed a sufficient number of two sets of ballots for use 
at each voting place, upon one of which should be printed : 


nel itl 


7 
“SPECIAL ELECTION. 


To decide for or against the purchase of the Cincin- 
nati Gas Light and Coke Company’s Works, — 


FOR THE PURCHASE OF THE GAS WORKS.” 
and upon the other set should be printed : 


“SPECIAL ELECTION. 


To decide for or against the purchase of the Cincin- 
nati Gas Light and Coke Company’s Works, 


AGAINST THE PURCHASE OF THE GAS WORKS.” 


And that a separate ballot box should be provided, and 
three judges and two clerks specially appointed to con- 
duct the election in each ward. 

It also avers, that said special election was duly held on 
Tuesday, October 9, 1866, and a majority of the electors 
of said city voted “for the purchase of the gas works,” 
and on November 16, 1866, the said City Council resolved 
to appoint a committee of five, to recommend the names 
of suitable persons from whom to choose appraisers to 
meet a like number appointed by the Company, “ who 
should proceed to appraise the pipes, buildings, fixtures 
and other apparatus owned and used by said Company in 
and about providing the citizens with gas, in accordance 
with Section 7, of the ordinance contracting with James 
F. Conover and associates, to furnish the city with gas, 
passed June 16, 1841,” and that said committee should 
also obtain all necessary information on the subject of the 


manufacture of gas, the cost of construction of gas 


works, and everything of interest bearing upon the sub- 


8 


ject, and report to Council “what legislative action is nec- 
essary in order to authorize the city to procure money for 
the purchase of said works:”—that said committee was 
appointed, and after January 23, 1867, having recom- 
mended the names of five persons by them deemed suita- 
ble, the City Council, by ballot, selected Miles Greenwood 
and Henry Kessler as such appraisers, and informed the 
defendants of such selection, and the defendants thereupon 
selected Oliver G. Steele and Henry Day as appraisers on 
their part, and notified the City Council thereof, and said 
four appraisers then met at said city on May 18, 1867, 
for the purpose of selecting a fifth appraiser, and proceed- 
ing with the valuation, and that they organized by the 
selection of Henry Kessler as chairman, and Henry Day 
as secretary, and having failed to agree in the selection of 
such fifth appraiser, have adjourned to meet upon the call 
of their chairman. 

The plaintiff filed three replications to the first and 
second pleas. The first is, that “neither the Cincinnati 
Gas Light and Coke Company nor the persons acting 
under such name and style, are the persons named in 
said Act of the General Assembly, nor their associates, 
nor the successors of such persons, or of their associates,” 
with a conelusion to the country. 

To this replication there is a general demurrer by the 
defendant. 

The second replication is, that the defendant during 
the time mentioned in the information, nor at any time, 
did not have or exercise an exclusive right to open and 
use the streets for conveying gas to the said city and 
citizens thereof, as alleged in said pleas, or otherwise, 
with a conclusion to the country. 


al es 


9 


To this replication there is a speczal demurrer, because 
it doesnot aver that any person or corporation other than 
this defendant did, during the time mentioned in the in- 
formation, have or exercise any right to open and use the 
streets, Xe. | 

The third replication is as follows : 

“And the said William H. West, Attorney General, 
for a further replication in this behalf, saith that true it is 
that the Cincinnati Gas Light and Coke Company did 


charge as the price of gas supplied and furnished to the 


citizens of said city of Cincinnati at the rate of two 
dollars and fifty cents for every thousand cubic feet thereof, 
as alleged in said pleas, but the said Attorney General 
further saith that the said General Assembly, by an act 
passed on the 5th day of April, 1854, provided “ That 
“after the passage of this act, it shall be lawful for the 
“ City Council of any city in which a gas company has been 
“or may be hereafter established, to fix from time to time, 
“by ordinance, the minimum price at which such council 
“shall require such company to furnish gas to the citizens 
“or public buildings of such city, or for the purpose 
“of lighting the alleys and public grounds thereof, for 
“any period not exceeding ten years; and from and 
“after the assent of said company to such ordinance, by 
“a written acceptance thereof, filed in the clerk’s office 
“of such city, it shall not be lawful for said city council 
“to require the said company to furnish gas to the citizens, 
“public buildings, public grounds, or public lamps of 
“such city at a less price during the period agreed on, 
“not exceeding ten years as aforesaid: provided that this 
“act shall not operate to impair or affect any contract 
“heretofore made between any city and gas light, or gas 


10 


“light ard coke company.” And that the City Council 
of the City of Cincinnati, on the 16th day of August, 
1857, by an ordinance, duly passed, provided, “That for 
“the period of one year from and after the first day of - 
“September, A. D. 1867, the Cincinnati Gas Light and 
“Coke Company shall furnish gas of the standard quality 
“to the public buildings of the City of Cincinnati and 
“to citizens or private consumers at the rate of two 
“dollars for each one thousand cubic feet so furnished, 
“and shall not charge any greater sum than that herein 
“snecified; provided, however, nothing herein is to be so 
“construed as a waiver by the City of her right to obtain 
‘‘ nossession of the works of said company, as provided 
“ by contract therewith.” And this he is ready to verify, 
and therefore prays judgment Xe.” 

To this replication the defendant filed four rejoinders. 

The first is, that by a decree of the Circuit Court of 
the United States for the Southern District of Ohio, in a 
cause wherein Sophia C. Deane was complainant and the 
defendant and the said city and others were defendants, 
the defendant was at the October term, 1867, enjoined 
from obeying, and the said city and all the. citizens thereof 
from enforcing said ordinance of the 16th of August, 
1867, which decree was, when the information was filed, 
and still is m full force. 

The second rejoinder is, that the defendant has not as- 
sented to or accepted the said ordinance. 

The third is, that about the first of March, 1867, the 
City Council elected to purchase the works under the con- 
tract, appointed two appraisers and notified the defendant 
who also appointed two, and the four met, but disagreed 
as to the appointment of a fifth, because the two appointed 


we 


Tl 


by the city insisted that the fifth should be like them- 
selves interested in the result of the appraisement, by 
“being a tax-payer of said city or otherwise subject to 
the influence of the interests of the government and people 
of said city;” which action on the part of the city appraisers 
was in pursuance of a secret understanding with a ma- 
jority of the members of the City Council, and was for 
the fraudulent purpose of depriving the defendant of a 
fair appraisement. That in pursuance of the same 
fraudulent purpose, a secret meeting of said members 
was held, when it was resolved to pass and enforce the 
ordinance stated in the said third replication, although 
it was well known to them that the price named therein 
was not and is not an adequate price for gas in said city, 
and to carry out said fraudulent purpose, the same mem- 
bers who composed said secret meeting, adopted said or- 
dinance 

The fourth is, that in September, 1858, the Prosecuting 
Attorney of Hamilton County, upon the relation of 
Samuel M. Hart, filed an information in the nature of 
a @uo Warranto, inthe name of the State against 
the defendant in the District Court for said county, 
whereby the Court was informed of the corporate; or- 
ganization of the defendant; that it was provided in 
its charter that any future legislature might alter, 
modify or repeal the same; that the legislature, by 
an act passed March 11th, 1853, so altered said char- 
ter that the said City Council was empowered to regu- 
late by ordinance the price which the defendant might 
charge for gas furnished to the citizens, public buil- 
dings, and streets of said city, and that if it charged 
more it should forfeit its rights under said charter. That 


LIBRARY “~~ 
UNIVERSITY OF ILLINOIS 


12 


in pursuance of said act, the said City Council, on the 
31st of August, 1853, passed an ordinance by which the 
price for gas furnished citizens and public bualdings was 
fixed at $2.25 per thousand cubic feet; that the defend- 
ant wholly disregarded the requirements of said ordin- 
ance and exacted $2.50 per thousand cubic feet from said 
citizens and other consumers of gas; wherefore judgment 
was demanded that the defendant be excluded from all 
corporate rights and be dissolved. That in October, 
1858, the defendant pleaded several pleas, the first of which 
was in substance the same as the first in this case pleaded, 
setting forth the charter, the contract and its assignment, 
by virtue of which, it was claimed, the defendant became 
invested with the exclusive privilege of lighting the city 
of Cincinnati with gas and of furnishing the city and 
citizens of Cincinnati with gas for the period of twenty- 
five years upon the terms set forth in the contract, which 
contract, it was claimed, could not be altered, modified or 
in any manner changed, by any legislation of the State of 
Ohio, or by any ordinance of the city of Cincinnati. That 
in May, 1859, the State filed its demurrer to said plea 
because the same was not sufficient in law to bar the 
State. That at the May term, 1859, of said District 
Court judgment was entered, finding said plea valid in 
law and that the facts therein set forth were a bar to the 
relief sought by the plaintiff in the information, and dis- 
missing the same. And the defendant avers in said 
fourth rejoinder that said judgment was in full force and 
unreversed, and prays judgment whether the State ought 
to be admitted or received against said judgment to plead 
the third replication. 7 
At the December term, 1868, the defendants filed a 
jifth rejoinder to the plaintiff's thard replication. 


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13 


_ This pleading is similar to the fourth rejoinder, except 
that it alleges that the Attorney General, acting herein 
as relator, filed the information in this cauze, upon eom- 
plaint caused to be made to him by the City Council of 
the city of Cincinnati, and not because of anything com- 
ing to his knowledge otherwise; that the relator in the 
information filed by Prosecuting Attorney O’Connor, 
in the District Court of Hamilton County, Samuel M. 
Hart, Esquire, was then City Solicitor of the city of Cin- 
cinnati, and acted therein by direction of the City Coun- 
cil of said city. Then, after fully setting forth the pro- 
ceedings and judgment of the said District Court, as in 
the fourth rejoinder, is added that at the time of the 
judgment of the District Court, the capital stock of the 
defendants amounted to $766,840, and their investment 
in real estate, gas pipes, gas holders, and other necessary 
permanent improvements and fixtures for the lighting of 
said city, to $834,708 only, and that on the faith and 
credit of said judgment they have, since its rendition, 
purchased other real estate, have laid annually in said 
city more than 4,000 feet of leading pipe for gas, have 
kept and fully performed said contract, have supplied 
said city with gas for public lamps at two-thirds the low- 
est average price at which gas was furnished during said 
time, to private individuals, in the cities of New Orleans, 
Baltimore, New York, Louisville and Pittsburg, have 
built new gas holders and enlarged their works, and before 
August 16, 1867, had bound themselves by separate 
written contracts to 10,568 private consumers of gas, to 
furnish them respectively with gas of the standard quality, 
and in so doing have been obliged to expend in perma- 
nent improvements necessary to the performance of said 


14 


contract, and without which it could not have been per- 
formed, the further sum of $1,095,879, and have increased 
their capital stock to the total sum of $1,844,900, and 
their property is of the value of millions of dollars, 
all of which, except the said sum so invested at the date 
of said judgment, has been invested in reliance upon said 
judgment, and used in the performance of said contracts 
with said city and said private consumers, and the sup- 
plying said city and its citizens with gas, 

To all these rejoinders there is a general demurrer on 
behalf of the State. 


Pr Credit, Led 


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et 5 Baty 


15 


POINTS AND AUTHORITIES FOR DEFENDANT. 


I, 


The first replication is a departure in pleading. The 
information admits the existence of the corporation, or 
that it once had a legal existence. Ifit was intended to 
charge that certain persons usurp the privileges and 
franchises of the corporation created by the act of April 
3, 1837, the proceedings should be against the usurping 
individuals, and not treat them as a corporation. 

Only corporations and individuals can be sued in quo 
warranto. Under the act of 1846, partnerships and 
trading companies not incorporated may be made de- 
fendants in cases in which money judgments can be 
rendered against them. 2 Swan & Cr, 1138. But 
there is no authority to sue a partnership or unincor- 
porated trading company in quo warranto. On the con- 
trary, under the Attorney General Act, (1 & & C, 89), 
the defendant must be either a corporation, or “person or 
number of persons.” Hence the corporate existence can 
not be here denied, and the replication is a departure, for 
which error, demurrer is the remedy. Durbin vs. Fisk, 
16 Ohio State, 538. 

But two species of quo warrantos involving corporate 
rights are known. First—Against the corporation to 
inquire why it exercises franchises not conferred, or justly 
forfeited. 1S. & C, 89, Sections 9-10. 2 do., 1266. 
Secondly—Against individuals, to inquire by what au- 
thority they claim to be a corporation. 18. & C, 89, 
Section 12. 2 do, 1265. This case falls within the 


16 


first class in the information, in the second class in the 
replication. 

See Pollexfen, arguendo, 8 Howell’s State Trials, 1214. 

State vs. Granville Alex. Soc. 11 Ohio, 9. 

State vs. Buckland et al, 5 O. S., 216. 

Commercial Bank of Natchez vs. State,6 Sn. % M., 
599. 

People vs. Rennselaer & Saratoga R. R. Co., 15 Wend, 
ShISS 

Commonweulth vs. Central Passenger R. R. Co., 52 
Penn. St., 510. | 

2 Saunders, 84 a-84 d. 

Angell & Ames on Corporations. §756. 

Grant on Corporations. *300. 

Stephen on Pleading. *410. 


17 


II. 
The second replication is had for two reasons: 


I. It does not aver any new facts, either in bar or by 
way of confession and avoidance of the first and second 
pleas. One of the charges in the information is that the 
defendant usurps the franchise of having and exercising 
an exclusive right, &c. The defendant could only justify 
or disclaim. The former is done by pleading, in the 
first plea, the charter and the Conover contract, and in 
the second, the charter, the Conover contract and twenty 
years continuous use of the franchise before the filing of 
the information. The facts of the jirst plea are expressly 
admitted, and those of the second plea are not denied, 
and whether, on these facts, the defendant has an exclu- 
sive right, is a question of law. The second replication, 
therefore, raises questions of law only, and must be 
treated as an informal demurrer. A proper issue can not 
be made by a traverse of the legal conclusions in a plea: 
that is the office of a demurrer. 

Now, the pleas are sufficient: the “st plea, because 
the Conover contract is valid and binding as between the 
parties to it. It created a right exclusive as against the 
city, until purchase as provided in it. Whether the 
State could have interfered, or can now interfere, and by 
legislation directed to that end, grant a like right to 
others, need not be discussed. The right is, in fact and 
law, exclusive until some other person or corporation shall 
possess a lawful similar right. As far as the city is con- 
cerned, the Conover contract was made in the proper ex- 
ercise of the powers granted by the acts of 1834 and 
1839, and its validity has been frequently recognized by 
the Legislature. 


18 


32 Ohio local laws, 250. 

37 66 66 éé 9,99. 

62 Ohio laws, 96. 

Cire eiuedibes be ¢ 4 

64 66 66 Fb 

Folz vs. City of Cincinnah, 2 Handy, 261. 

Bailey vs. New York City, 3 Mill 531. 

Wes. Sav. Fund Soc. vs. City of Phil. 31 Pa. St. 
181. 


The second plea is sufficient for the same reason: also 
because the use and exercise of the franchise for twenty 
years is a bar to the action. 


2 Swan & Critchfield, 1270. 

Angell 5 Ames on Corporations, § 743. 

State vs. Granville Alex. Soc., 11 Ohio, 9. 

State vs. Mian Exporting Co. “ 126. — 

People vs. Oakland Co. Bank, 1 Douglass (Mich.) 285. 
Rex vs. Stacey, 1 Lerm Rep., 1. 

Winchelsea Cases, 4 Burrows, 1962. 


19 


2. If the second replication be treated as a pleading 
of fact, as it seems to have been intended, it is bad be- 
cause it fails to show what other person or corporation did 
have and exercise the right thus denied to be exclusive 
during the period mentioned in the information. To be a 
proper pleading of fact, it should not admit the facts 
pleaded, traverse the legal conclusion, and conclude to the 
country, but should either traverse the facts pleaded, be- 
cause had and exercised lawfully by some other person or 
corporation. 


Stephen on Pleading, * 191, 284, 388. 
1 Chitty Pl. *236, 261, — 

Anson vs. Stuart, 1 Term Rep., 748. 
People vs. Thompson, 16 Wend. 656. 


20 


ITI. 


The fifth plea pleads in addition to the facts stated in 
the second plea, the re-enactment of the Conover contract 
in 1854, and the attempt now making to enforce it under 
Legislative sanction, in accordance with a vote of the 
people of the city, held in pursuance of law. If the right 
were not exclusive before 1854 as against the city, it was 
made so then. If not exclusive before 1866, the action 
then taken gave it that character. A perfect estoppel 
is shown as against the city, recognized and sanctioned 
by the State. 


McIntire Poor School vs. Zanesville Canal & Man. Co. 
et al. 9 Ohio, 203. 
Miami Exporting Co. vs. Clark, 13 Ohio, 1. 


21 


Le 


As the Court, in passing on the plaintiff’s demurrer to 
the defendant’s rejoinder, will consider the whole record, 
nN we propose to argue the following questions: 


First. Is the Act of April 5th, 1854, an alteration, 
modification or repeal of the defendant’s charter. 


Dwarris on Statutes, 533. 
Constitution of Ohio, Article 2, Section 16. 
Pim vs. Nicholson, 6. O. S. 179. 
In the matter of the Reciprocity Bank, 22 N. Y. 9. 
Western Saving Fund Society vs. City of Philadelphia, 
31 Penna, St. 181. 

> Dodd, et al, vs. State, 18 Indiana, 56. 


22 


Secondly. Was it the intention of the General Assem- 
bly to confer power on the City of Cincinnati to fix the 
price of gas without consent of the defendant. 


Plumb vs. Sawyer, 21 Conn. 351. 
Grinder, et al, vs. Nelson, 9 Gill, 299. 
Von Schmidt, et al, vs. Huntington, et al, 1 Cal. 58. 


Thirdly. Tf such was the intention, is not the exercise 
of the power as against the defendant barred : 


1. By the decree stated in the first rejoinder. 


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23 
2. By reason of the facts stated in the third rejoinder. 


2. S. and €.1559, Section 13. 
Davis vs. Mayor, Sc. of New York,1 Duer, 452,494, 


495, 506. 


3. By the judgment set up in the fourth and jifth 
rejoinders. 


Grant on Corporations, *298, 301, 307, 308. 

2 Coke's Institutes, 49 6. 

Angell and Ames on Corporations, $752. 

Duchess of Kingston's case, 2 Smith’s leading cases, 
688, 689, 696, 697. 

Grant vs. Ramsay, 7 O. S. 157. 

Babcock vs. Camp, 12 0. 8. 11. 

Bouchaud vs. Dias, 8 Denio, 238. 

People vs. Richardson, 4: Cowen, 120. 

People vs. Utica Insurance Company, 15 Johns, 387. 

Darby vs. Regina, 12 Cl. and Fin. 520, 537. 

Rex vs. Carmarthen, 2 Burrows, 869. 

Rex vs. Ogden, 10 B. and C. 233. 

Goddard vs. Sith, e¢ al, 3 Gray, 122. 


24. 


Rez vs. Carpenter, 2 Shower, 47. 

Anonymous, 12 Mod. 224. 

Rez vs. Harford, 1 Lord Raymond, 426. 

People vs. R. and S. Railroad Company, 15 Wend,114. 
Utica Insurance Company vs. Scott, 8 Cowen, 720. 
State vs. Granville Alex. Society, 11 Ohio, 13,14. 
Gelston vs. Hoyt, 3 Wheaton, 316. 

Wilcock on Corporations, Sec. 498. 


Fourthly. Tf it was the intention to confer such power, 
does not the act and ordinance under it violate the de- 
fendant’s charter, and the contract between it and the 
city. 

Constitution of United States, Art. 1, Sec. 10. 

Constitution of Ohio, Art. 2, Sec. 28. 

2 Kent Comm, *468. 

Note to 2 Sw. and C. 1534. 

Fletcher vs. Peck, 6 Cranch, 87. 

Taylor vs. Terrett, et al, 9 Cranch, 43. 

Dartmouth College vs. Woodward, 4 Wheat, 699. 

Green vs. Biddle, 8 Wheaton, 1, 84. 

Providence Bank vs. Billings, 4 Peters, 514. 


25 


Charles River Bridge Company vs. Warren 


Bridge Company, 11 Peters, 420. 
Bronson vs. Kinzie, 1 Howard, 311. 
McCracken vs. Hayward, 2 Howard, 608. 
Planters’ Bank vs. Sharp, et al,6 Howard, 301. 
West feriver Bridge Company vs. Dia, et al, 6 
Howard, 507. 
Umted States vs. Babbitt, 1 Black, 61. 
Gelpcke vs. City of Dubuque, 1 Wallace, 175. 
Hlavemeyer vs. Lowa County, 3 Wallace, 294. 
Mitchell vs. Burlington, 4 Wallace, 270. 
Pingry vs. Washburn, 1 Arken, 268. 
Thorpe vs. Rutland & B. Railroad Company, 27 


Vermont, 146. 
Boston & Lowell oe vs. Salem & Lowell Corp. 


eLal,2 Gray, 28. 
Da Bee vs. Hssex Co. 13 Gray, 239. 


People vs. Platt, 17 Johns, 195. 
Benson vs. Mayor, &c. 10 Barbour, 223. 
Ogden vs. Gibbons, 4 Johns, Chy, 160. 


Western Saving Fund Society vs. City of Phil- 
adelphia, 31 Pa. Sé. 181. 

Clarke vs. B.& P. Bridge Company, 41 Pa. St. 
157, 160. 

Winter vs. Jones, 10 Georgia, 190, 195, 196, 200. 

Jemison vs. Planters and Mechanics’ Bank, 23 


Ala. 168. 
Powell vs. Sammons, 31 Ala. 552. 


Grand Gulf Railroad and B. Co. vs. State, 11 


Sm. & M. 429. 
New Orleans, dc. Railroad Company vs. Harris, 


27 Miss. 538. 


26 


Murray vs. Menefee, 20 Ark. 560. 

Sage vs. Dillard, etal, 15 Ben Monroe, 356. 

Ohio & Miss, Railroad Company vs. McClellan, 
25 Jl. 143. 

Robinson vs. Magee, 9 Cal. 81. 

Grogan vs. San Francisco, 18 Cal. 590. 


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